Forensic Document Examination and Estate Litigation Hull on Estates - #223
Listen to: Forensic Document Examination
This week on Hull on Estates, Rick Bickhram and David Smith discuss forensic document examination and how it applies to the rules of evidence.
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David Smith: Hello and welcome to Hull on Estates. You’re listening to episode #223 on September 21st, 2010.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
Rick Bickhram: Hi and welcome to another episode of Hull on Estates. I’m Rick Bickhram.
David Smith: And I’m David Smith.
Rick Bickhram: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.
Well how are you doing today, Dave?
David Smith: I’m doing well, Rick. And thanks for talking to me about blogging with you today. We talked about topics and as some of our listeners may know, I posted a blog on our website today on forensic documentation examination. And we chatted, Rick, and thought this could make an interesting podcast.
Rick Bickhram: Absolutely. Documents are…well we regularly come into contact with documents that are doctored by several individuals. And this is certainly a very interesting area, especially since it applies to the Rules of Evidence as well.
David Smith: Right. I mean, in estate litigation, Rick, you and I time and time again have met with clients who will insist that the signature at the end of a Will or a signature on a beneficiary designation is not the signature of the testator or the deceased. And, you know, if every case, and it’s no disrespect to the position advanced by clients, but proving…alleging a forgery is one thing. Proving it is another, isn’t it?
Rick Bickhram: Absolutely two different burdens there.
David Smith: Right, and I mean what…well let’s talk a little bit about that. What is the risk if we’re gonna litigate? I mean certainly I’m very cautious about alleging fraud. And what is it about fraud that makes a litigation lawyer so nervous?
Rick Bickhram: Well fraud is a very serious allegation and it requires particulars to be pleaded if there is an allegation of fraud. Secondly, if there’s an allegation of fraud and it’s not backed up, there’s no evidence to support that allegation, then the credibility of your client seems to go down the pipe.
David Smith: And cost consequences can be very serious if you allege fraud and don’t prove it, right?
Rick Bickhram: Absolutely.
David Smith: So we’re gonna talk a fair bit about fraud, I think, in this podcast today because it’s in the context of fraud that there’s often need to engage the services of a forensic document examiner. The other interesting thing about fraud is it’s probably the area where civil liability and criminal liability kind of overlap. I mean, more often than not, if clients think that a fraud has been committed, they’ll ask their lawyer if they should go to the police as well as pursue civil remedies.
Rick Bickhram: Absolutely. And I think the reason why that is, is because forgery can be considered a criminal offence and at the same token, there could be civil remedies for someone who may have had to retain a lawyer to prove that that signature or document was a fraud.
David Smith: Right. And of course we’ve all heard the term “white collar crime” and you know at its heart, fraud is actions on the part of individuals that is an outright illegal action. And, I mean, forging a signature is a great example of an action where somebody uses illegal and possible criminal means to achieve a result. Quite often, and certainly where the civil context overlaps the criminal context, it’s with a view towards making money. The criminal issue is whether it constitutes theft. The civil issue is whether it violates the laws that we…the standards we expect of individuals in terms of their fair dealings with one another. So let’s sort of now turn to the whole idea of forensic document examination. If we engage the services of a forensic document examiner, Rick, we’re trying to prove a fraud. We’re trying to prove usually that a signature is not the signature of the testator, for example, on a Will.
Rick Bickhram: Yeah.
David Smith: I suppose the other issue that might come up and we talked at the outset about beneficiary designations and what have you, is in our practice we occasionally deal with other documents where not only the signature but the entire Will may be in issue, right?
Rick Bickhram: Absolutely. If it’s a holograph Will, I think the handwriting of the testator is gonna be material as to whether or not that’s the testator’s actual handwriting.
David Smith: That’s right. And so if a document is tendered…and I suppose the other thing too is, you could have a Will and I actually recall a case along these lines where the Will was written out in the handwriting of an individual who was someone other than the testator. So it wasn’t a holograph Will. The testator signed the Will and it was witnessed by two people. The issue, of course, was whether the testator knew and understood the document or whether the signature was somehow improperly placed at the bottom of a document that was written out in someone else’s handwriting. So there’s all kinds of theories you can have as to what happened in terms of a scheme to create a false Will, for example. The issue is proving it.
Rick Bickhram: Absolutely. And that goes to evidence. And that’s where a forensic document examiner would come in handy. It would be a matter of putting to the forensic document examiner for an opinion as to whether or not the signature…in your situation, whether or not the signature was valid because here there was kind of an admission that the handwriting on the Will itself was not by the testator.
David Smith: Right, right. You know, the interesting thing about handwriting analysis is, we’ve all heard about the sort of Coney Island fun house where there’s a handwritten analysis offered where someone much like someone gazing into a crystal ball will look at your handwriting and tell you what kind of person you are, based on an assessment of your handwriting. And so there is…and that’s not with any disrespect to forensic document examiners…but there is both a subjective component and an objective component to handwriting analysis, isn’t there Rick?
Rick Bickhram: Absolutely. And I think this paper here that’s written by Ms. Giles, or Dr. Audrey Giles who works at the Giles Document Laboratory. The paper can be found on Dave’s blog which is dated September 20th. This article goes into a very, very well documented, detailed evolution of forensic examiners, the type of equipment and methods employed by them and how it’s evolved over the years.
David Smith: That’s right. And you know the subjective analysis, which is really pretty important, will depend upon the slope of letters, the spacing between letters and a subjective assessment of the handwriting style. One of the points Ms. Giles or Giles…I’m not sure how it’s pronounced…makes in her piece is that she says it’s one thing to analyze handwriting. If you’ve got a piece of handwriting, I mean, a great example that most people will recall is that very famous ransom letter in the Ramsay case where the whole question was whether or not the mother had written out that document or not. And I don’t think there was any consensus found on that. But a handwriting sample with that much detail…the point Ms. Giles makes is it’s a lot easier to determine if that’s somebody’s handwriting because it’s such a big sample. You can assess all kinds of things relating to handwriting in terms of slope of letters, what have you. A signature’s a much smaller sample, of course.
Rick Bickhram: Absolutely. And I guess what they’re doing is, they’re taking impressions of prior handwritings and impressions of prior signatures. So there’s not a lot to work with in regards to a signature as opposed to, for estate litigators, the holographic Will which may be a full page worth of samples.
David Smith: Right. And if we think about a signature as well, another point Ms. Giles makes is she points out that everyone has some degree of variation in their signature, some people more than others. And, you know, we’ve all seen examples when you scrawl your signature really quickly, if you’re in a rush or you scrawl your signature if you’re signing a credit card receipt as compared to signing a letter. You might put a bit more care into it. And the problem is that it makes it a very challenging act on the part of the document examiner to determine if there’s been a forgery or if it is in fact the real signature of the person.
Rick Bickhram: Absolutely. And I think the neat point she makes is that over years, as we age over the years, our signatures tend to vary. And as Dave has indicated, it could be something as simple as the slopes in an “R” or a “B” just around the signatures. And again, it varies based on your age or the years that you go through.
David Smith: Right. And you know Ms. Giles points out that if you’re gonna forge a signature, the professional forger who may attempt to mimic the signature of someone by just doing a free flowing duplication of that signature, it’s virtually impossible to duplicate a signature that way. And this was when she gets into the interesting, very scientific approach of looking for trace marks or indentations where a sample signature may have been traced onto the paper, leaving an indentation. And that overtop of that the forger may try and duplicate the signature. And with special scientific machines, basically, the document examiner is able to identify and locate such impressions on the paper. And there’s some machine in particular that she refers to in her paper, a video…let’s see if we can find it there…video spectral comparator. And I’ve got a link to that in my blog and the interesting link is that it was…it seems that in the late 1990’s, that was held out by the FBI as a real advance in the whole approach to handwriting analysis. Of course, Rick, that brings us to the sort of modern day issues that have arisen over the past 10 years. And of course that brings us to such things as scanning software and Photoshop. And what are the issues that come up there?
Rick Bickhram: Absolutely. And nowadays what I’ve started noticing is that there are more and more individuals who are relying on electronic signatures, which is making it more difficult for everyone generally when it comes to examining signatures or examining documents in general. Photoshop, for instance…and this is why it’s so difficult…Photo shop, we can import a signature and especially if we’re using an electronic signature or even a handwritten signature. We can scan a document, import it into Photoshop. And once it’s imported into Photoshop, there are so many different things you can do with it. You could squash the signature, make it horizontal, make it vertical, make it bigger. And that again is presenting a new challenge for these forensic document examiners because as our technology evolves, so does the methods when it comes to the examination of these documents and signatures.
David Smith: But you know, the interesting thing too Rick is, it’s a really good argument in favour of the old school way of doing things. I mean, you know, there’s always a lot of commentary on the fact that estates litigation and trusts and estates law hasn’t changed in some ways for decades or even hundreds of years. And you know a good argument for the requirements of formal validity of a Will, you know, the original being signed in the presence of two witnesses, really takes on greater importance when you think about the risks that could otherwise be presented if, for example, the legislature ever permitted electronic signatures on Wills to be valid in the absence of witnesses. I mean, it highlights for us why it’s so important to have these formal validity requirements that have been, you know, enshrined in the common law for so many years.
Rick Bickhram: Absolutely. And there’s reasons for it and there’s another example, another perfect reason for it.
David Smith: Right. So I think that brings us near the end of our time, Rick. It was an interesting discussion. Certainly I commend Ms. Giles’ piece to our listeners. And again you’ve referred to that. And there’s a lot of stuff out there. One thing we didn’t touch on was another link that I’ve got on my blog to an outfit called CEDAR, it’s the State University of New York at Buffalo, the Buffalo campus. And that’s…yeah the Centre of Excellence for Document Analysis and Recognition. It’s interesting just to see the extent to which the US government, for example, has poured resources into the fight against white collar crime. And again, that’s another segway out of our discussion.
So that brings us to the end of the podcast. Thanks so much for listening and thanks for joining me today.
Rick Bickhram: It was a pleasure, Dave. I look forward to podcasting with you again soon.
David Smith: And we look forward to hearing from our listeners. Just to repeat, you can send us an email at hull.lawyers@gmail.com. Be sure to visit our blog again at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed the show. I’m Dave Smith.
Rick Bickhram: And I’m Rick Bickhram. Until next week, so long.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
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